Annual Herbert L. Bernstein Lecture in International and Comparative Law

Article excerpt

FOREWORD

The Duke Journal of Comparative & International Law would like to thank Professor Jonathan Ocko for his invaluable assistance in the translation and editing of this year's Bernstein Lecture, as well as for the authorship of this forward. The Journal could not have published the piece without Professor Ocko's generous contributions of time and expertise.

To have Zhu Suli, Dean of Peking University Law School, deliver the Fifth Annual Herbert Bernstein Memorial Lecture in International and Comparative Law on November 2, 2006, was especially apt. His address not only commemorated Professor Bernstein, it also commemorated the twentieth anniversary of Professor Bernstein's first foray into Chinese law at the 1986 Law and Contemporary Problems Conference on "The Emerging Framework of Chinese Civil Law." (1) Moreover, Zhu's lecture touched on one of the central issues raised at that conference, namely the extent to which German and other foreign models had influence on and were of value to China. At the conference, and in a later essay, the late Tong Rou, a law professor at People's University Law School and one of the drafters of the General Principles of Civil Law, acknowledged that he and his colleagues had not created the civil law anew. However, stressing the singularly Chinese nature of the document and its reflection of the particular Chinese experience, he emphatically resisted analyses, Bernstein's among them, that he perceived as over-emphasizing foreign influence. To understand the distinctive national character of the law, argued Tong, one had to consider "broadly the social structure, all political economic phenomena, and the entire legal system." (2) In his lecture, Zhu Suli echoes Tong Rou's concerns. Zhu welcomes comparative analysis of Chinese contemporary law, but he sees it as having value and cogency only in so far as the comparativist first grasps the realities of China and remembers that no comparative framework is intellectually neutral.

Zhu Suli's scholarly writings are substantial and wide-ranging, contributing to the literature on rule of law, law and pubic policy, legal sociology, law and society, and legal education. Though largely in Chinese, they are indirectly accessible in English through an analytical summary of his work by Hong Kong University law professor Albert Chen (3) and a review of his recent monograph, Sending Law to the Countryside: Research on China's Basic Level Judicial System (4) by New York University law professor Frank Upham. (5) Accordingly, rather than reprise still another account of Zhu's work, I will restrict my comments to several brief observations.

First, Zhu Suli is not simply one of Peking University (Beida) Law School's more distinguished alumni; he is also one of its proudest and most loyal alums. Zhu's decanal remarks to incoming and graduating Beida law students demonstrate his deep, emotional attachment to Beida Law School and his passionate feelings about the role that it and its students can and should play in China's evolving legal system. (6) Yet he tempers his prideful affection for both his school and his students with reminders that this well-known brand stands for nothing by itself. Beida law students must give it meaning and substance by being individually accomplished and committed to the social responsibility for the greater good that they undertake as a concomitant of their legal education.

Second, Dean Zhu is above all else a pragmatist. For him, "there is no absolute knowledge.... Law is for solving practical problems." (7) As Zhu makes clear in Sending Law to the Countryside, foremost among these problems is the absence of law and legal services in rural China. (8) How, he asks in a recent essay on a celebrated rural judge, can China be a rule of law country when the sixty percent of its population that lives in the countryside is largely without law, that is, without affordable legal services and dedicated adjudicators? …

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